The Irascible Professor
SMIrreverent Commentary
on the State of Education in America Today

by Dr. Mark H. Shapiro

"A
countryman between two lawyers is like a fish between two cats."...
...Benjamin Franklin.

Commentary
of the Day - June 22, 2004: Hidden Costs - Education in the Age of
Lawyers. Guest commentary by Poor Elijah (Peter Berger).

Credit cards can
seduce us. That's because every purchase involves weighing the value
of the item against the value of the currency we'd be trading for it.
Credit allows us to fully savor the item in the present while we shift
its cost to the back of our minds and postpone the price we're paying until
next month's bill.

Lawsuits between
a little guy and an institution can confound our judgment the same way,
particularly when the little guy is an actual little guy, meaning a student,
and the institution is a school. Partly that's because it's natural
to sympathize with a child, especially after his lawyer has had time to
clean him up. It's also not uncommon for adults to bear some small
or not so small resentment of some petty school authority figure who did
us wrong in our past. At times like these we remember our bad teachers
more clearly than the good ones.

We're also living
in an age of advocacy. An advocate's job is to speak on behalf of
someone who's unable to adequately state his own case. This makes
sense in a courtroom where the government retains a lawyer to prosecute
criminal charges. It's why the Constitution specifies a right to
legal counsel for ordinary citizens like us. In court I'd be no match
for the state's prosecutor.

But we've taken
advocacy too far. Fifteen years ago I stayed overnight in a hospital.
The next morning a lady armed with a clipboard appeared at the foot of
my bed. She introduced herself as my advocate. She wanted to
know if anybody had mistreated me since I'd checked in. At the time
I was relatively young, healthy, and articulate, so it wasn't clear why
she or anybody else would have thought I'd need her to rat out my nurses
and my doctor, which is what she was trying to get me to do. I replied
politely that everything was fine, but if you visit enough patients every
day, and your job depends on it, you will always find a few malcontents
who can dig up a complaint in a pinch, especially if they think that's
the expectation.

Education advocacy
is a booming cottage industry. Advocates materialize at parent-teacher
meetings to represent students who've allegedly been mistreated or denied
their rights. As for public expectations, we are conditioned by our
own long-nurtured adolescent grievances, some genuine school problems,
and a generation of bad press to assume that when someone complains about
a school or a teacher, the complaint is probably valid.

Add the escalating
rant of advocates to our acquired biases, our natural sympathy for children,
and our devotion to the rights of the individual, particularly the perceived
underdog, and you've got a recipe for the confusion and injustice that
beset and cripple schools and students today.

Legal absurdities
don't just plague education. We sue McDonald's for forcing us to
gain weight eating French fries, milkshakes, and greasy beef.

In the legal arena
schools are heir to the political fallout of the 1970s when courts upheld
and expanded students' rights to voice antiwar views. According to
a Brookings Institution presentation, these precedents effectively and
inappropriately extended the same due process rights to students "facing
even minor discipline," even when the issues had "little or nothing to
do with free expression or protest."

Now we sue schools
over grades and detentions. Parents sue coaches when their kids don't
make the team or play enough. We sue principals who discipline kids
for drinking on a school trip. We sue when a school tells a handicapped
student that he can't play on the soccer team if he has to use his walker
during games. In this case school officials were concerned about
the hazard to everyone's safety, but a sage federal judge disagreed.
He ordered the four-wheeled metal walker onto the field and suggested that
the league hire an adult to stand near the boy during games.

Meanwhile, a California
jury awarded a sixth grader $500,000 when school officials didn't silence
a classmate's "lewd insults and threats." I'm all for disciplining
obnoxious kids, but a half million bucks for an eleven-year-old's insults
is ridiculous.

Then there's the
serial vandal who was finally expelled after a school "graffiti spree"
that cost taxpayers $40,000. His mother hired psychologists, who
promptly diagnosed attention deficit disorder, and the court ordered him
returned to classes. Or how about the student who threatened to kill
his allergic teacher with peanut butter if she disciplined him. He
did this in front of his entire class. His parents reaction?
They're demanding that the incident be expunged from his school records.

Don't these parents
know how to blush? And even if they don't know right from wrong,
shouldn't the rest of us?

Incidentally,
the president of the ACLU has determined that "educators' fears of being
sued are overblown." Excuse me, but the ACLU downplaying the threat
of lawsuits is a lot like Attila the Hun reassuring Europeans that they
don't need to worry about an invasion from the east.

These extremes
aren't as exceptional as you might think, but they're not the worst part
of the problem. Even worse than the cases that make it to court are
those that don't because officials are too afraid of what might happen
if they did. An irate, litigious, irrational fringe daily extorts
unjustifiable concessions for their children, everything from personal
aides they don't need to additional excuses they don't deserve. These
fear-driven compromises and capitulations gut academic standards, pose
a real and present danger to other students, dramatically inflate the cost
of public education, and make a mockery of common decency.

Our ill-founded
sympathy for child plaintiffs further victimizes all the other children
who suffer as their classmates. And our yielding in the face of threats
costs us all much more than we could ever lose in court.

The
IP comments: The right to sue over grievances real or perceived goes back
to the Bill of Rights (In Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be preserved
.....). However, as Poor Elijah correctly notes, we have become an
overly litigious society. Some politicians have proposed corrective
measures that would limit the right to sue, but the IP thinks that is a
bad approach. A better tack would be to educate the public so that
when they serve as jurors they are less like to make excessive awards,
and to educate school officials to resist the temptation to capitulate
in situations where they have a good case.